Periodically, Nigerians go to the polls to cast their votes in a plurality voting system to either elect or re-elect leaders. The offices to which citizens elect officials include the office of the President and Vice President,109 Senators, 360 House of Representatives members, 36 Governors, numerous individuals to occupy the seats in the various State Houses of Assembly as well as Chairmen and Councilors across the 774 Local Government Councils of the federation.
Sometimes after rigorous campaigns and the election, some candidates in the race lose out. The next available option opened to aggrieved candidates and their respective political parties is recourse to the election petition tribunals and, in the case of the Presidential candidate, the Court of Appeal. The Aggrieved petitioners seek redress through the election petition mechanism. Election petitions are not a regular feature of our jurisprudence. They are special occasional spurts in our jurisprudential horizon. They are in the words of Ariwoola JSC, “Unique and peculiar, different from other civil matters.” Refer to the case of Ugba v. Suswan (2012) 4 NWLR (Pt. 1345) 427. It was also the opinion of Charles Dadi Onyeama JSC (as he then was) in Oyekan & Anor v. Akinjide & Anor (1965) LPELR-25250 (SC) who stated, reiterating the uniqueness of election petition, “The proceedings on an election petition are special proceedings for which special provisions are made in the constitution…”
Due to the special nature of election petitions, the Constitution made special provisions for its commencement, conduct, and conclusion within very precise timelines. The Constitution of the Federal Republic of Nigeria (hereinafter CFRN) in section 285 (6) clearly stipulated that the hearing and determination of an election petition shall not exceed 180 (one hundred and eighty) days from the date of filing of the petition to the resolution of the issues in the petition. Subsection 5 of that same section 285 leaving no room for any form of indecision on the part of the potential petitioner stated that the petition must be brought within 21 days after the declaration of results.
The essence of this rapid quick timeline and time boundaries is to ensure a mandatory resolution of issues and final determination of election matters and results so as to leave no room for chaos or uncertainty in the political landscape of a state or the country at large.
This article will attempt to dissect the election petition backdrop with particular focus on the standard of proof required to obtain a favourable outcome of the election tribunal or court. The major thrust of the article will be to analyze the issue of whether the election petition system is not rigged or judicially biased against the petitioner vis-à-vis the set standards and hurdles that appear to be in place. This becomes forceful especially when considered under the microscopic focal light of where there is an allegation of fraud or other criminal elements which usually raises the bar to proving the allegations beyond reasonable doubt. A quick fact check of the most recurring grounds of petition are the allegation of noncompliance with the Electoral Act (hereinafter ‘The Act’) and acts of fraud. These grounds automatically foist the additional requirement of proving the allegations beyond reasonable doubt which said acts of fraud and other criminal elements alleged most times occur under the most difficult to prove circumstances.
Secondly, this article will address head-on, the issue of cost in the election petitions. This issue will be raised, canvassed and addressed, in light of the provisions of the Electoral Act, whether the Election Petition procedure, the often voluminous and bulky compilation of evidence and the financially intensive requirement are not heavy weight which unnecessarily weigh the petitioner’s shoulders grievously?
Thirdly, this article will address critically the 180 days’ timeline limit. The fulcrum of attention will revolve around the automatic and enshrined helplessness of the petitioner who for no fault of their own, may lose out on a well-articulated and presented case, only because the tribunal or the Court as the case may be was either deliberately or not deliberately hamstrung from crossing the finish line before the 180 days’ mark. In this regard, pertinent suggestions will be highlighted and novel recommendations will be proposed which if implemented may, together with the other issues raised rejig and revolve our election petition process towards a more modern proactive and justice centric approach.
Finally, the article will draw upon the election petition practices and procedures in the United States of America (hereinafter the “United States” or “USA”). This nexus, despite the apparent difference in jurisdictions, is quite relevant as the USA and Nigeria both operate a Republican system and share a similar judicial and litigation system albeit slightly different in hierarchical arrangements. The positive highlights of the American election petition system, with a particular focus on the Bush-Gore election adjudication will be highlighted, and then the article will close on the possible and potential positive points which could be extracted from the US and similar jurisdictions to completely revolutionize our election petition process. The essence will be to show that while we have a functional and workable election petition system, there is room for its improvement into a better election petition system.
Analyzing the Election Petition System, Structure, Practice, And Procedure In Nigeria
Before we delve headfirst into the election petition system, structure, practice, and procedure, it is imperative to state that our discussion will flow from the following headings:
The obtainable grounds for an election petition
Who are the defined persons and entities capable of bringing an election petition?
The statutory content of an election petition and accompanying documents
The available election petition tribunals, and;
An election petition: How it works, practice and
After discussing the above issues, we will close in on the thorny subject of the different standards of proof in the predominantly civil suit. The discussion on appeal process and procedure for enforcing election petition tribunal decisions will be discussed in a subsequent article.
In discussing the above-outlined subheads, the drafters of the Constitution did not leave the question unanswered as to when an election petition may be brought after an election or who could validly bring the petition. It would have been a dangerous situation if no clearly marked principles were established in this regard. There would have been a floodgate of suits at various times distracting the performance and smooth running of governance. But even more worrisome, it would have led to a situation where meddlesome interlopers who have neither business nor gain in the electoral process would have entered the race to distract the sitting successful candidate. Kindly see the case of Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor 1981 LPELR-SC. 1/1981 where the Supreme Court held that for any person to bring an action, such a person has to show his locus standi or sufficient interest to bring such a suit. The drafters of the Constitution and the Electoral Act, in restricting the category of persons and the
timeline in which a petition can be brought, entrenched useful criteria to prevent unwarranted legal challenges.
Hence to prevent a situation where the successful candidate was to be left in a perpetual state of uncertainty, the drafters of the Constitution as discussed in the introductory paragraph earmarked a ‘living’ period of oxygenated timespan within which a petition could be brought.
The drafters of the Constitution in their wisdom restricted the timeline opened to an aggrieved participant in the election to a 21 (twenty-one) days span. See 285 (5) of the Constitution of the Federal Republic of Nigeria (hereinafter CFRN). Once this period has lapsed, no force above or beneath can resuscitate the right to action. In the very interesting case of Oyekunle Gbenga v. All Progressives Congress & Ors LOR (06/09/2019) SC, the claimant brought an action challenging the declaration of another candidate as the APC flag bearer in the House of Representative election for the Offa/Ifelodun/Oyun constituency after the party primaries. By virtue of Section 285
(9) of the CFRN, all pre-election matters are to be brought within 14 days of the complained action or decision. Mr. Gbenga had waited for a period spanning almost 20 days before bringing the action. The matter was struck out at the trial court for being statute-barred. Upon appeal to the Appeal Court and subsequent appeal to the Supreme Court, the appellate Courts reaffirmed the decision of the trial Court to dismiss the appeal holding that once the constitutionally sanctioned timeline lapses, the matter becomes a dead-on-arrival suit for which no amount of resuscitation can revive.
Hence, any election petition must be commenced within 21 days of the declaration of the results. Failure for same to be commenced within the stipulated timeline will result in the matter being declared statute-barred. Kindly see the cases of Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69, Zayyad Ibrahim v. APC (2019) 16 NWLR (Pt.1699) 469]. Nigerian Ports Authority Plc v. Lotus Plastics Limited & Anor. (2005) 19 NWLR (Pt. 959) 158 and National Revenue Mobilization Allocation & Fiscal Commission& ors. v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247.
The Electoral Act going further delimited the factual grounds of what might inspire or ground an election petition to just four grounds. In other words, if the claims or gravamen of the Petitioner cannot be squared into any of the stipulated grounds, then the petitioner could as well bid farewell to any challenge of the election.
The grounds, pursuant to Section 134 (1) (a) – (c) of the Electoral Act are:
That the person whose election is contested was at the time of the election not qualified to contest the election. We shall briefly discuss this ground with all its attendant implications.
That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. This ground will bear the weight of our subsequent discussion in this article.
That the Respondent was not duly elected by a majority of the votes cast at the
The old Act previously also provided for other grounds such as
where the Petitioner or its candidate (where the petitioner is a political party) was validly nominated but was unlawfully (note the term ‘unlawfully’) excluded from the election.
That the person whose election is questioned had submitted to the Commission (INEC) affidavit containing false information of a fundamental nature in aid of his qualification for the election. It will be recalled that one of the grounds against the election of Governor Godwin Obaseki of Edo state in the recently concluded Edo State Governorship election petition tribunal had been the allegation that the Governor had forged and or falsified his school certificate to INEC. Kindly see the petition in Action Democratic Party & Anor v. INEC & 2 Ors (2021)LCN/15169(CA).
However, Section 134 (3) provides that with respect to ground 1 above, if a person is deemed to be qualified for an elective office, his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution
Flowing from the above, where an aggrieved candidate or political party in an election cannot ventilate his grievance under any of the above grounds, he may as well bid the petition goodbye.
On the first ground enlisted in Section 134 (1) (a) of the Electoral Act (hereinafter the “EA” or the “Act”) it is clear that what is intended here is that the successful candidate
/Respondent was not at the time of the election qualified to contest. It is important here to draw one’s attention to the phrase, “as at the time of the election.” So, the principle at equity that equity considers as done that which ought to be done will not avail a Respondent here. It is immaterial that perhaps, after the election the successful candidate/Respondent became qualified. What matters for all-time material is that for the large timespan going backward before the election, the candidate was not qualified.
This directly leads to the question: what determines the eligibility of a candidate in an election? In other words, what are the qualifications that a candidate must possess before he/she can validly contest an election?
While the different elective offices carry different criteria for eligibility, a common threshold can be gleaned from the relevant provisions of the CFRN stipulating the eligibility criteria which include sections 131 and 137 (which provide qualifications for the office of the President), 177 and 182 (which provides qualifications for office of the Governor of a state), 65 and 66 (which stipulates qualifications for the office of the National Assembly) and sections 106 and 107 (which outline eligibility for House of Assembly contestants). Collectively, any candidate for the above-mentioned offices must satisfy the following criteria:
The candidate must be a Nigerian citizen by birth. For the office of the president, he/she must have attained the age of 35 (thirty-five) at least, the office of the governor, he/she must have attained the age of 35 (thirty-five) at least, for the office of the Senate, he/she must have attained the age of 35 (thirty-five) at least, for the House of Representatives, he/she must have attained the age of 25 (twenty-five) at Also for the House of Assembly of a state, he/she should have attained at least 25 (twenty-five) years.
The candidate must be educated up to at least school certificate level or its equivalent. The outcry has been there and the present researcher also is of the opinion that the barest minimum educational qualification for the above-mentioned elective posts ought to be a University degree.
The candidate must be a member of a political party and must be sponsored by that party. This effectively means that there is no independent candidacy in our electoral laws.
He must not be adjudged to be a lunatic or of unsound
The candidate must not be under any sentence of death or imprisonment for an offence involving dishonesty or fraud (or by whatever name called) or any other offence, imposed on him by any court or tribunal or substituted by a competent authority of any sentence imposed on him by such a court or tribunal.
Within at least 10 (ten) years, prior to the date of the election, the candidate should not have been convicted and sentenced for an offence involving dishonesty or should not have been found to be guilty of contravening the code of conduct.
The candidate must not be a member of a secret
Where the candidate is in the employ of the civil or public service of the federation or a state as the case may be, he shall have resigned, withdrawn or retired at least 30 (thirty) days before the date of the election.
Such a candidate must not be an undischarged
An additional requirement for the office of the President as gleaned from section 137 (3) is to the effect that where the candidate succeeded a former President so as to complete his tenure, the candidate can only be entitled to a further term of just four years and no more. While the intent and relevance of this provision are clear, especially in the light of the saga that trailed the candidacy of President Goodluck Jonathan’s declaration to
contest the 2015 elections, however, it is the position of the present researcher that this position is overly restrictive and unconstitutional.
The question to be answered at all times ought to be, who contested the election that had brought in the predecessor of the continuing office? Who had won that election? Who was sworn in ab initio? When these questions are answered accurately it will be seen that the candidate in contemplation in Section 137 (3) CFRN who succeeded the deceased or removed or resigned person elected is different from that person and ought to be allowed his/her own constitutionally guaranteed two terms of four years each.
Hence it is the suggestion of this article that at the next available opportunity, this novel provision should be expunged.
The other criteria for election into the office of the Governor or the President, pursuant to Section 137 (1) (b) and 182 (1) (b) CFRN respectively is that such person should not have been elected to such office at any two previous elections.
Having enunciated the basic requirements to contest the various contestable offices, this directly leads to the next issue. Where a candidate who was validly seised of all these requirements contested and lost in the elections, can such a candidate contest the election? If yes, can he challenge it alone, and who are the possible contenders against whom he or she can contest the outcome of the election at the election petition tribunal?
The Act clearly stated that the person(s) entitled to present a petition, pursuant to section 133 (1) (a) (b) are:
A candidate in the election,
A political party which participated in the
The persons to answer/respond to the petition include, by virtue of Section 137 (2) and
(3) the successful candidate who shall be the respondent and, in the event of grievance at the conduct of an electoral officer, a presiding or returning officer, the INEC. It should be noted that the Act stated that it shall suffice to join INEC as a respondent and not necessarily those officers in their personal capacity. In that instance, INEC shall be deemed to be defending the petition on behalf of itself and its questioned officers.
An aggrieved candidate can bring the petition jointly with his party as co-petitioner. For a deeper discussion on who can bring an election petition, kindly refer to the cases of Okon
Bob & Ors (2003) LPELR -6098 (CA) ; Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) Olanrewaju v. INEC & Ors (2010) LPELR -4749 (CA) and Jegede & Anor v. INEC & Ors (2021) LPELR -55481 (SC).
Having identified the persons authorized to challenge the outcome of an election, the next issue that comes to the fore is, how such a person or persons can contend the election result or the validity of the election as a whole? Similar to how a Writ of Summons drives
the Claimant to the hallowed chambers of justice, the petition sheet and its accompanying documents also ferry the aggrieved candidate or political party or both as the case may be to the Tribunal halls for them to ventilate their grievances.
Before proceeding further, it is very important to note that any aggrieved entity must act timeously by presenting the petition within 21 days of the election. Note that in calculating the 21 days, time starts to count from the day succeeding the declaration of the result and includes weekends (Saturdays and Sundays). However, as the court held in Kabir v. CAN (2012) All NWLR (Pt. 647) 638, where the 21st day abates on a Sunday, it shall be carried over to the Monday immediately succeeding that Sunday. Hence the 21st day will terminate at 12:00 a.m. on the next Monday. But it is the view of the present researcher that an aggrieved candidate need not wait that long before heading for the tribunal doors. 7 (seven) or 14 (fourteen) days at most should be enough for him or her or the political party to have made up its mind to contest the election results from the date of the declaration.
As previously stated, the avenue through which an aggrieved entity in an election can bring his grievance is the petition. Paragraph 4, schedule 1 to the Electoral Act presents the statutory contents of an election petition sheet. These include:
The names of the parties interested in the election
Specify the right of the petitioner to present the election
State the holding of the election, the scores of the candidates, and the person returned as the winner of the election.
State clearly the facts of the election petition and the ground or grounds on which the petition is based.
The relief sought by the
Sub 2 states that the petition shall be arranged in paragraphs each of which shall be confined to a distinct issue or major facts and every paragraph shall be numbered accordingly and consecutively. The petition must be signed by the petitioner or by his counsel, if any, with their names stated at the foot of the election petition.
The documents to accompany the petition sheet include:
A list of witnesses the petitioner intends to call in support of his Note that in practice, as well as provided for in the Schedule, the names of the witnesses are not given in full but acronyms to disguise and protect witness identity due to the sensitive nature of electoral matters in Nigeria.
A written statement on oath of the
Copies of list of every document to be relied upon at the hearing of the petition. Since most of the documents to be relied upon are INEC documents, it is often important to have them certified to ensure their admissibility and avoid potential issues at trial
Sub 6 (six) clearly states that the consequences of failure to comply with the above- stipulated requirements of accompanying documents is the rejection of the petition at the tribunal registry. Sub 7 states that where there is a failure to comply with the form in the petition sheet, the petition is liable to be struck out by the tribunal or court.
Having seen the requisite contents of the election petition sheet and the mandatory accompanying documents, the next question to come to the fore is, what then is the procedure for conducting the petition? This all-important procedure is very extensively discussed in the 1st schedule to the Electoral Act. We will briefly outline the major key posts in the election petition hearing procedure but before then, it behooves to quickly outline the available tribunals and courts to which an aggrieved political entity may turn:
1. Court of
2. National Assembly and State Houses of Assembly election
3. Governorship election
4. Area Council Election Tribunal and Local Government Election
5. Area Council Election Appeal
In discussing the above court and tribunals established under the CFRN and the Act, by virtue of Section 239 (1) (a) CFRN, the Court of Appeal is granted the exclusive jurisdiction to the exclusion of all other courts and tribunals to hear and entertain the presidential election petition. Section 239 (2) CFRN outlines the judicial quorum as being 3 (three) justices in hearing and determining an election petition. An entity aggrieved by the ruling of the Court of Appeal in its capacity as the presidential election petition tribunal may proceed to the Supreme Court on appeal pursuant to Section 233 (2) (e) (i) CFRN.
Section 285 (1) CFRN provides for the establishment for each state of the federation and the FCT, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals. These Tribunals to the exclusion of all other courts and tribunals are saddled with the original jurisdiction to hear and determine petitions as to whether a person has been validly elected as a member of the National Assembly or State House of Assembly. Sub 2 of section 285 went further to create and establish for each state of the federation a governorship election tribunal. Sub 3 made reference to the composition of the National and State Houses of Assembly election petition tribunals as well as the Governorship Election Tribunal. Sub 4 stated that the quorum of an election tribunal established under Section 285 shall be the chairman and two other members.
Briefly, considering the composition of the Governorship, National and State Houses of Assembly Election petition, the 6th Schedule to the CFRN particularly A and B provide as follows:
For National Assembly Election Tribunal, the composition is a chairman (who shall be a judge of a High Court) and 2 other members. The chairman and the 2 other members shall be appointed by the president of the Court of Appeal in consultation
with the Chief Judge of the State, the Grand Khadi of the Sharia Court of Appeal of the state, or the president of the Customary Court of Appeal of the state as the case may be.
The composition of the Governorship Election Tribunal shall consist of the chairman (who shall be a judge of a High Court) and 2 other members (who could either be Judges of a High Court, Khadi of a Sharia Court of Appeal or members of the judiciary not below the rank of a Chief Magistrate).
The other election petition tribunals are the Area Council Election Tribunal for the FCT and the Area Council Election Appeal Tribunal by virtue of Section 131 of the Electoral Act as well as Section 132 respectively of the same Act. These provisions all relate to the Federal Capital Territory. Corresponding tribunals in the states are the Local Government Election Tribunals.
In challenging the victory of a candidate in an election, the aggrieved candidate or the aggrieved political party or both as the case may be, usually commence their legal battle by filing the petition. However, the preliminary first step is to obtain certified true copies (CTC) of all relevant electoral materials from the INEC. Upon the compilation and receipt of the INEC documents, the next step is to painstakingly prepare the petition sheet and the supporting documents. It is also paramount that the Petitioner’s counsel obtain all receipts of every payment for each CTC of documents. He must file the petition together with the CTC of the documents, the applications to the INEC for the relevant documents as well as the receipts from the INEC. Without these accompaniments, though trivial they may be, the petition stands the risk of being either struck out or being lost due to technicality.
After the filing of the petition with the secretary of the tribunal, the election petition is formally commenced. The consequential procedure is straightforward albeit somewhat slightly weighty due to the voluminous content of evidence usually involved.
For comprehensive insight and understanding as to how the election petition is conducted, we recommend the whole of the 1st schedule to the Act. But suffice it to be mentioned that a skeletal sketch of the procedure gleaned from practice and the prescription of the 1st schedule to the Act will be presented hereunder.
It is also important to note that the procedural guide for election petitions under the Electoral Act is the Civil Procedure Rules of the Federal High Court for the time in force. Schedule 1 paragraph 54 provides that as nearly as possible, the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction shall apply to Election Petition Tribunals with such modifications as may be necessary to render them applicable, having regard to the provisions of the Electoral Act. Thus, the practice and procedure of the Federal High Court is what is obtainable in election petition tribunals.
The procedure for commencing, conducting, and concluding an election petition
The petitioner or his counsel (as is often the case) will present 10 copies of the election petition and the other accompanying documents plus such additional copies of the filed documents according to the number of Respondents. Aside from merely presenting the petition, the petitioner is required to take further steps such as depositing such security in cash amounting to not less than N 5,000 (five thousand Naira). This is intended to cover logistical costs associated with summoning witnesses summoned by either the petitioner or the respondent. Failure to make this deposit results in the automatic dismissal of the petition. By virtue of Section 4 of the Election Tribunal and Court Practice Directions 2011 the petitioner is further saddled with the responsibility of depositing cost for the service, publication of the petition and certifying the copies of the petition to the tune of N200,000 (two hundred thousand naira). The Petitioner is further mandated to deposit security for costs in the sum of N 200,000 (two hundred thousand naira). A critical examination of the financial implications of this mandatory expense shows an undeniable expensive system. Though it is not the place of the present researcher to complain on behalf of the petitioner (s), however it is important to state that where the petitioner, due to the attendant cost of the petition is prevented from pursing his claims no matter how genuine, it serves to erode the fundamental purpose for which the election petition system was established.
A pertinent recommendation is that like in the United States jurisdiction (which we shall briefly analyze) election petitions should be filed in regular state courts like any other civil claim, or in the l event of potential bias, the Federal High Court. To ensure a critical assessment of all the facts, allegations and evidence, the numbers of Judges on the petition could be increased to 3 (Three). This will reduce cost and ensure a very simple and efficient procedure.
Another key suggestion is the reduction of the number of copies of the petition and accompanying documents required. Since the tribunal is made up of three persons, a total of 6 (six) copies of the petition and the accompanying documents in addition to such extra number of copies of documents as there are respondents should suffice instead of the required 10 (ten) copies.
However, in all these, a saving grace provision may be found in Paragraph 3 subparagraph 4 which provides that in default of payment of the aforementioned necessary fees, the election petition shall be deemed not to have been received unless the tribunal or court otherwise orders. It will seem that an application to the Court (Court of Appeal) or the tribunal under the circumstances can waive or reduce these requirements.
In addition to the petition sheet, the petitioner is further required to file the respondent’s address for service. This address is to enable personal service. It is important to note that substituted service does not operate in election petitions by virtue of Paragraph 8 (1) (b). This may not be unconnected to the fact that election petitions are time bound. However, to avoid injustice, Paragraph 8 (2) made an allowance for where personal service is not possible. It allows something similar to substituted service. However, Paragraph 8 (3) went further to state that the petition shall not be vitiated notwithstanding that there was no personal service or where there was an order for substituted service and such documents did not get to the Respondents. While this provision may seem antithetical to the very essence of service in our jurisprudence, it has to be born in mind that the drafters were conversant with the practical reality. It will be very hard for the Respondent’s address for personal service not to be known. The present researcher goes further to suggest that an amendment should be introduced to allow for service at the Respondent’s party office premises and that such service should for all intents and purposes be deemed personal service.
Once the petitioner has taken the above steps, he/she becomes functus officio for the time being.
The secretary of the tribunal then causes notice of the election petition to be served on the Respondent(s). Thereafter, certified true copies of the petition are pasted on the tribunal notice board. Then lastly, the secretary shall dispatch copies to the tribunal adjudicators –i.e. the Chairman and the members.
Within 5-7 days of the service of the notice of petition, the Respondent shall enter appearance. The Respondent is required to leave a copy of the memorandum of appearance for each of the other parties of the petition and three other copies. The good news for the Respondent is that unlike the conventional suits, failure to enter appearance does not lead to the petition being deemed admitted or right to enter defence waived. Even where the Respondent fails to file the Memorandum of Appearance, he is still entitled file his Reply within the 21 day period. Where the Respondent does not provide an address for service, all documents for his attention are pasted on the tribunal notice board and that shall be sufficient service on the Respondent.
By virtue of Paragraph 12 (1), the Respondent is expected to file its Reply within 21 days.
In election petitions, any objection contesting the jurisdiction of the tribunal or the validity of the petition itself is heard during the proceedings of the substantive suit.
Paragraph 16 contemplates where the Respondent raises fresh issues of facts which the petition did not deal with, the petitioner is entitled to file his Reply within 5 days of receipt of the Respondent’s Reply. However, there are conditions attached to this Petitioner’s right to reply. Paragraph 16 (1) provides thus:
- —(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so that—
- the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
- the petitioner’s reply does not run counter to the provisions of paragraph 14 (1).
The other conditions are that:
- The time limited by subparagraph (1) shall not be extended, i.e. the Petitioner’s 5 days to respond,
- The Petitioner shall be bound by the time stipulated for him/or it (in the case of a political party) for proving its case.
Once pleadings have closed, Par. 41 stipulates the time within which each party shall prove its respective cases.
The timeline under Paragraph 41 (10) is as follows:
- The petitioner, in proving his case shall have, in the case of —
- Councilor, Chairman, and State House of Assembly, two weeks;
- House of Representatives, three weeks;
- Senate, five weeks;
- Governor, six weeks; and
- President, seven weeks,
The Respondents have a uniform timeline of not more than 10 days to present their defence. Before the parties engage in full hearing of the Petition, Paragraph 17 gives the parties a final opportunity to submit any additional particulars or seek any further directions. This window is available from the day after the filing of the Memorandum of Appearance but shall not exceed 10 days after the filing of the Reply. The Act did not specify whose Reply is being referred in this context. But it will likely depend on which party filed last. Where the Respondent filed his Reply last, and the 5 days’ period (which cannot be extended) for the petitioner to file his own Reply lapses, then five days afterwards of the filing of the Respondent’s reply will be obtainable, the parties will become barred but where the Petitioner files his own Reply, then 10 days after the Petitioner’s Reply, the parties will become barred from bringing any application for further directions or submit further particulars.
Pre-Hearing Session and Scheduling
Just before the commencement of legal proceedings at the open tribunal by way of hearing, the parties are mandated by Paragraph 18 of the 1st Schedule of the Act to perform a final but ultimately crucial act. Perhaps the most important of all the steps in the petition. The parties are required to sit down with the Chairman and the other members of the tribunal in a pre-hearing and scheduling session. A proper management of these sessions would have successfully completed the petition halfway.
The importance of this session is so significant that failure to participate will automatically result in grave consequences for either party. It is important to note, that where the Petitioner (who is the right party to bring an application for the session) fail to apply for the session, the Respondent can move for same to be commenced. See Paragraph 18
(3). However, a more prudent Respondent attorney ought to bring an application for the petition to be dismissed. In fact, by virtue of Paragraph 18 (4) where either party fails to bring an application for scheduling, the tribunal is mandated to throw out the petition. Such petition once thrown out is deemed dismissed and the dismissal is final in the sense of all finality and the tribunal or Court shall be functus officio and the petition can never be heard again.
Having seen the importance of this seemingly trivial pre-hearing stage, the question arises, what happens or what is done at this stage?
First and foremost, it is crucial to understand that this stage is mandated by the Act to be commenced within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or where the Respondent files and serves his own Reply within 7 days of the Reply. The onus of applying for the pre-hearing form as in Form TF 007 lies on the petitioner since it is his suit. However, the Respondent for any reason, where the Petitioner fails can still undertake the task although in practice it is highly unlikely.
Basically, the business of the day at the Pre-hearing sessions are:
- The disposal of all matters which can be dealt with on an interlocutory application
- Directions on the future procedure of the hearing of the petition which will ensure a speedy, economical and just disposal of the petition especially within the 180 days’ timeline.
- Directions on the order in which witnesses are to be called and the documents each party intends to rely on.
- Fixing clear dates for the hearing of the
After the pre-hearing sessions, the tribunal shall enter a scheduling order for the following category of items:
- Joining other parties to the petition (where necessary).
- Amending the petition or reply or any other
- Filing and adopting Written
- Additional Pre-hearing sessions (Where necessary).
- Order of witnesses and tendering of documents that will be necessary for the expeditious disposal of the petition and,
- For any other matters (s) that will facilitate and promote the quick disposal of the
Also at the hearing, the Tribunal or Court is empowered to consider and take appropriate action in respect of the following as may be necessary or desirable—
- amendments and further and better particulars;
- the admissions of facts, documents and other evidence by consent of the parties;
- formulation and settlement of issues for trial;
- hearing and determination of objections on point of law;
- control and scheduling of discovery inspection and production of documents;
- narrowing the field of dispute between certain types of witnesses especially the Commission’s staff and witnesses that officiated at the election, by their participation at pre-hearing session or in any other manner;
- giving orders or directions for hearing of cross-petitions or any particular issue in the petition or for consolidation with other petitions;
- determining the form and substance of the pre-hearing order; and
- such other matters as may facilitate the just and speedy disposal of the petition bearing in mind the urgency of election petitions.
The pre-hearing session has a lifespan of 14 days from commencement to termination. Hearing at these sessions is from day to day, as much as practicable. At the conclusion of the session, a report is published to guide the Court or Tribunal on the subsequent course of the proceedings.
The consequences of non-compliance or failure to fully participate in the pre-hearing session are significant. For the Petitioner, if they or their counsel fail to attend or participate fully, the Tribunal is empowered to dismiss the petition (Paragraph 11(a)). In the case of the Respondent, the tribunal can enter judgment against them for failing to attend or participate fully. However, this judgment can be set aside upon an application made within 7 days. The 7-day period for setting aside the judgment cannot be extended. If no application is made within this timeframe, the judgment becomes final, and steps to enforce it are initiated as if it were a judgment following the full hearing. If after 7 days there is no application to set aside, the judgment of the Tribunal becomes a final judgment and all the necessary steps to enforce the judgment will be activated as if it were a
judgment of the tribunal after the full hearing. However, where the applicant within 7 days brings an application to set aside, the court will obtain an undertaking from the applicant and his counsel duly signed by both persons to effectively attend and participate in the session. The Tribunal is also empowered to impose costs on the erring party but such cost shall not be less than Ꞥ20,000 (Twenty Thousand Naira).
After the pre-hearing session has been concluded and a pre-hearing report drawn up, the next procedure in the election petition is the full hearing of the petition in the open Court or Tribunal hall.
in the second part of this article, we will delve into the procedures and legal intricacies that come into play during the hearing of election petitions. Also, in the second part of the article, we will briefly consider whether the ruling of the Tribunal or the Court is the last hurdle in the Election Petition, and if not, then what other procedures follow the judgment in an election petition ruling. Also, in the next part of the article, we will critically review the procedures and the possible posts where reform could be entertained. We will also review all the aforementioned suggestions and pertinent recommendations, especially on the need to revisit the herculean standard of proof in election petitions where crime is alleged. We will also draw on the US election petition example and possible recommendations we could extract to engender a better election petition system in Nigeria. The article will conclude by highlighting specific points from the recommendations which could be implemented, sections that may need amendment and salient procedures to be adopted.
we’ve considered the entrenched timelines allowed for an aggrieved entity to bring a petition in an election matter as well as the length of time allowed by the Constitution of the Federal Republic of Nigeria, 1999 as amended (the “CFRN”) for the conduct and conclusion of the election petition proceedings. We also considered the available election petition tribunals and court, the grounds for an election petition, the qualifications of candidates for the various electoral offices in the country, and then a conspicuous review of the election petition procedure particularly the pre- hearing procedure and the pre-hearing sessions and scheduling.
In this concluding part of the article, we will focus on the hearing procedure, the standards of proof, a review of the US jurisdiction election petition system, and pertinent suggestions and recommendations that could revolutionize our election petition system. Such in-depth discussion will feature suggestions for a review of the immutability of the 180-day span, the need to reconsider the heavy standard of proofing allegations of crime in an election petition beyond reasonable doubt, the need to reconsider the cost implications, and other pertinent recommendations.
Hearing in the petition
As seen in the previous part of this article, once the pre-hearing session has been concluded, the parties are then free to prove their respective cases within the respective timeline allowed. The conduit through which this is achieved is the hearing session in the election petition. Due to the greater percentage of meticulously settled matters at the pre- hearing stage, hearing is often seamless with witnesses merely adopting their filed Witnesses statements on oath, tendering of documents, and cross-examinations.
By virtue of Paragraph 19 of the 1st Schedule to the Electoral Act, every election petition shall be heard and determined in an open Tribunal or Court. Paragraph 20 (1) demands that at least 5 (five) days before the hearing commences, the notice of the time, date and place of the hearing is sent to the parties and the INEC as the case may be.
Paragraph 20 (2) provides that the place of hearing –the Tribunal or the Court shall have due regard to the proximity to and accessibility from the place where the election was held. Furthermore, by virtue of Paragraph 25, hearing sessions in election petitions are conducted on a daily basis. If on a scheduled hearing date or any adjourned dates, the tribunal chairman or presiding Justice of the Court is absent, the petition shall be adjourned to the next day and the process continues if necessary. The hearing may even occur on a Saturday. During the raging days of the COVID-19 lockdown, a Governorship election petition tribunal was in full gear.
Once the parties have completed the process of leading their witnesses to adopt their witness’ statement on oath, and the other side has cross-examined the witnesses as the case may be, the party beginning is given the opportunity for re-examination. This allows him to clarify apparent contradictions in the witnesses’ testimony but does not permit the introduction of new issues during this phase.-.
Once all the witnesses have been heard, the Tribunal will ask the parties to file their written addresses.
It is pertinent to note that where at the hearing of the petition either party fail to appear, the tribunal is empowered by virtue of Paragraph 46 (1) to strike out the petition and same shall not be re-listed. Where the petitioner fails to appear at the hearing, the respondent is entitled to judgment striking out the petition. On the other hand, where the Petitioner appears but the Respondent does not appear, the Petitioner is allowed to prove his petition as far as the burden lies on him after which the tribunal/court shall enter a final judgment. However, where both parties or any of the parties’ failure to appear is unintentional or due to circumstances beyond their control, the tribunal is inclined to adjourn the petition. However, where no good reasons can be shown for the absence of parties, the tribunal shall strike out the matter and such striking out is final. It has to be mentioned that any serious party to a petition who will not be able to attend the hearing can send a formal letter seeking a brief adjournment. But the key point to be borne in mind is that if the Tribunal or Court as the case may be strike out the petition for failure of parties to attend, such striking out is final and the petition cannot be relisted. See Paragraph 46 (1) – (3).
By virtue of Par. 46 sub-paragraph 5, a party is mandated to close his case once the party has finished adducing his evidence. A very interesting provision is found in sub-paragraph 6 which gives the tribunal power to close any party who is taking too long to conclude his
case. An election petition attorney, apart from having the 180 days benchmark in his mind must always be conscious of the allowed window in all he does.
Sub-paragraph 7 provides that the secretary is to take charge of every document entered as exhibits and assign each a label. However, in practice, it is the tribunal chairman who labels the exhibits more or less like the regular trial judge.
Paragraph 46 (10) states that the parties after they have closed their cases respectively shall then file written addresses.
The pattern of filing and serving written addresses is as follows: Where the respondent did not file any defence, the Petitioner shall within 10 days after the close of his evidence file a written address. Upon being served with the written address, the other party (the respondent) shall within 7 days file his own written address. By virtue of sub-paragraph 11, where the other party (the Respondent) calls evidence, that party shall within 10 days of the close of evidence file a written address. Then the Petitioner shall file his own written address within 7 days of the receipt of the Respondent’s Written Address. In both scenarios, the party who first filed his written address is entitled to a reply on points of law within 5 days after the service of the other party’s written address.
By virtue of paragraph 47 (2) Motions are allowed to be heard in election petitions. A combined reading of Paragraph 47 (3), (4) and (5) show that a party may make any application and that such application has to be by a motion. The motion must be supported by a written address and an affidavit. The receiving party is entitled to file and serve a counter affidavit and a written address within 7 days of the receipt of the motion where he intends to oppose the application. The Applicant is then allowed a 3-day window wherein he may introduce a further affidavit and a reply on points of law. However, it will be recalled that in the previous limb of this article, it had been categorically stated that all motions in a petition can only be taken at the pre-trial and scheduling stage (refer to Paragraph 47 (1)).
However, the drafters of the Act in their wisdom, foreseeing instances where further applications may be necessary after the commencement of the hearing, inserted a saving provision. By virtue of Paragraph 47 (1) any other motion coming up after the pre-hearing stage must be preceded by an independent application for leave to the tribunal or court for that application. However, this application must be urgent and in “extreme circumstances.” Therefore, it is important for an election petition attorney to foresee and as much as possible settle all applications and interlocutory matters during the pre- hearing stage so as not to leave the fate of his application in the hands of the tribunal or the court.
When the parties have filed all their written addresses and the corresponding reply and closed their cases completely, the stage is then set for judgment.
It is important to note that all the parties involved in the election petition process are bound by specific timelines in proving their respective cases (Paragraph 41 (10)). Recall that the tribunal is by virtue of Paragraph 46 (6) empowered to close any party whose case is taking too long to close. However, it will seem that this power of the tribunal cannot be exercised where a party has not exhausted his/its apportioned timespan.
Judgment in Election Petition
Section 285 (6) CFRN provides that an election petition tribunal/court shall (mandatorily) deliver its judgment in writing within 180 days from the filing of the petition.
The question then arises: what happens when the tribunal fails to deliver judgment within the 180 days’ timespan? Does the petition become void and nonexistent? Is there no hope for the petitioner? does he become a double loser?
The sacrosanct provision of section 285 (6) CFRN is couched in mandatory terms and admits of neither variance nor interpretation. This automatically means that where the petition tribunal is out of time, the whole petition, steps, and procedures taken in the proceedings would have been a total waste of time. The CFRN did not provide for any saving grace by way of extension, equitable remediation, or sanction on the tribunal panelists as a way of incentive to deter any laxity.
Before we make our pertinent recommendations, it is necessary to briefly analyze the judicial body language of the highest court of the land and the Court of Appeal in this regard. Perhaps therein may be distilled a glimmer of hope or otherwise from judicial interpretations of section 285 (6) CFRN.
The Court of Appeal in the case of Labour Party v. INEC & Ors (2012) LPELR-7901 (CA) held per John Inyang Okoro JCA that, “…the above constitutional provision, in my opinion, is very clear and unambiguous. It is to the effect that from the date an election petition is filed, the tribunal shall deliver its judgment in writing within 180 days, no more, no less. This means that after 180 days, the said Tribunal no longer has jurisdiction to do anything in the petition.” (pp. 13 -14 Paras A – B).
In that same case of Labour Party v. INEC & Ors (which we highly recommend for further reading), the court went further to place reliance on the Supreme Court’s decision of ANPP v. Goni & 4 Ors (Unreported) Suit Nos: SC. 1/2021 and SC. 2/2012 delivered on February 17, 2012 where the Supreme Court had held that,
“…the above provision is very clear and unambiguous and therefore needs no construction or interpretation. The law is settled that in a situation such as this, the duty of the court is to apply the provision as it exists, that is, to give the words their plain and ordinary meaning. The above being the law, it follows that an election tribunal in an election petition matter must deliver its decision/judgement/ruling/order in writing within one hundred and eighty (180)
days from the date the petition was filed. It means the judgement cannot be given a day or more, even an hour after the one hundred and eighty (180) days from the date the petition was filed. Until the National Assembly amends Section 285 (6) of the CFRN any petition which is not determined within the 180 days from the date of filing lapses and so is this one.”
From the foregoing pronouncement of the Supreme Court and the Court of Appeal, though sad, the law is trite that upon the lapse of the 180 (One hundred and eighty) days from the date of the filing of the petition, the tribunal/Court will become like the Biblical Pontus Pilate whose jurisdiction terminated when he washed his hands.
This provision should be immediately reviewed and amended at the next possible date. We are of the opinion that the National Assembly in amending this rather draconian and common law-like provision should borrow a leaf from Section 293 (5) CFRN. That section provides as follows:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
Subsection 1, referred to above provides: “all judgement in a suit (for the purpose of the above section) must be delivered within 90 days of the conclusion of evidence and final addresses.”
The two points extractable and highly recommended from section 293 (5) CFRN above, which is hereby recommended for adoption to substitute Section 285 (6) CFRN above are:
First, while it should be clearly stated that an election petition tribunal/court must deliver judgment within the 180-day span, however, the failure to deliver within the 180-day span should not be a ground to vitiate the entire proceedings.
Secondly, a provision for an appeal process should be included to consider the fairness and justice where an election petition tribunal exceeds the 180-day limit, particularly in cases where the complainant suffered a miscarriage of justice.
Where the present section 285 (6) CFRN is amended to incorporate the above-mentioned recommendations, it will help greatly in not just giving the petitioner a peace of mind but will also grant the tribunal the needed latitude of time to consider all the usually voluminous bundle of evidence without the trepidation of being helpless at the expiration of the 180 days’ mark.
Having mentioned the above with the intent that someday, the above recommendation will be implemented in future, the article will turn to the next thorny issue of standard of proof in an election petition.
Before discussing the various standards of proof in an election petition, it is important to mention that judgment in an election petition does not conclude the procedure. Usually, immediately after the ruling or judgement, the Tribunal or Court must certify the result to the Resident Electoral Commissioner (REC) or the INEC. Paragraph 28 (2) further states that if the Tribunal or court has determined that the election is invalid, then subject to section 140 of the Act, where there is an appeal and the appeal fails, a new election must be held by the commission (INEC) and such election must be conducted within three months of the date of the determination of the petition.
Therefore, it can be validly stated that an election petition tribunal’s task per se comes to an end either at the determination of the appeal at the Supreme Court (as is often the case for petitions that reach that level) or the ruling for fresh elections to be conducted and within three months where there is no appeal of such ruling. Whichever way it goes, usually there is always a winner at the tribunal/court and a loser. However once the Supreme Court has pronounced on the decision of the tribunal/Court, the petition becomes a matter per rem judicata estoppel. It will be recalled that recently an attempt to resuscitate a settled petition at the Supreme Court was met with intense reproofs and costs.
Standards of Proof in Election Petition
Ordinarily, an election petition is a predominantly civil suit. This means that the standard of proof, by virtue of Section 134 of the Evidence Act is proof on balance of probabilities. However, in an election petition, any ground of the petition alleging a criminal offence shall be proved beyond reasonable doubt. Section 135 (1) of the Evidence Act provides: “If the commission of a crime by a party to any proceeding is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
The courts at various instances have given life to this provision. In Ikpeazu v. Otti & Ors (2016) LPELR-40055 (SC), the Honourable Justice Suleiman Galadima (JSC) at pp. 16 – 17 Paras A-B held,
“…the law has not changed. Where in an election petition, the petitioner makes an allegation of a crime against the Respondent, and he makes the commission of the crime the basis of his petition, Section 135 (1) of the Evidence Act 2011 imposes strict burden on the said petitioner to prove the crime beyond reasonable doubt. If he fails to discharge the burden, his petition fails.”
The Supreme Court in that case placed reliance, in arriving at the above principle on the cases of Okechukwo v. INEC (2014) 17 NWLR (pt. 1436) 255; Nwobodo v. Onoh (1984) 1 SCN at P. 29, 1984 1 SC Reprint.
Similarly, in the case of Abubakar & Ors v. Yar’Adua & Ors (2008) LPELR-51 (SC), the Honourable Justice Niki Tobi JSC (pp. 174 – 174 Pars. A –B) held that
“…the law I know is that where a crime is alleged in an election petition, the petitioner must prove it beyond reasonable doubt.”
In Buhari & Anor v. Obasanjo & Ors (2005) LPELR -815 (SC), the Supreme Court reaffirmed the same principle and again in the 2016 petition of Emmanuel v. Umana & Ors (2016) LPELR -40037 (SC) as well as Nyesom v. Peterside & Ors (2016) LPELR
The above discussion makes it evident that unless the National Assembly undertakes a critical review of section 135 (1) of the Evidence Act, the Supreme Court will likely continue to apply a stringent approach in its interpretation of this provision.
Having established the above requirement of standard in proofing allegations of crime in an election petition beyond reasonable doubt, the question then arises, is it really possible to prove allegations of crime in election petitions beyond reasonable doubt?
Granted that section 135 (1) of the Evidence Act contemplated civil suits generally, however, as shown earlier, while an election petition belongs to the limb of civil suits, election petitions are a special type of action, a sui generis class of litigation. Therefore, it naturally behooves a special and different set of principles whose aim should be to do justice and nothing but justice. In a majority of election petitions in Nigeria, the allegations of crime are always mostly a recurring decimal. The present researcher from research and personal participation discovered that it is often difficult for the petitioner, where he alleges crime in election petition to be able to prove same beyond reasonable doubt.
The reason is rather simple. First, a keen observer of the Nigerian electoral process will note that most Nigerian elections are often allegedly marred by rigging, violence, gunshots, thuggery and general bedlam. In such circumstances, potential witnesses may understandably be scared and flee for their safety. Then in the petition halls or court, it becomes difficult for these witnesses who saw such acts of violence to testify mostly out of fear. In a petition in which the researcher participated, a witness was kidnapped right in the premises of the petition hall. Therefore, when the petitioner under the Nigerian electoral petition system is required to prove his case of criminal allegation beyond reasonable doubt, the Petitioner will become hard-pressed to have witnesses who would be daredevils to hang around during the often-dangerous acts of violence. In these instances, it becomes extremely difficult to prove before the court the alleged acts of violence and other criminal allegations. To compound issues for the petitioner, there are often no corroborative systems like closed circuit televisions (CCTV) and law enforcement personnel. A comprehensive review of the petitioner’s burden to prove allegations of crime in an election petition beyond reasonable doubt will almost be similar to that of erecting the pyramids of Giza, at Egypt in a day.
The reality from a practical perspective is that proving most allegations of crime (except perhaps fraud on paper and forgery), becomes an exceedingly challenging task, particularly in situations replete with violence, voter intimidation by kidnapping, and shooting of guns at the voting arena. Proving these allegations beyond reasonable doubt in such circumstance is an almost impossible herculean task.
The present researcher understands the tribunal/court’s need to be objective, and to be able to assess all facts with dispassionate eyes, yet if the facts do not even scale the premium bar of being admissible due to a rather stiff and onerous standard, how then can such fact find themselves in the much-coveted golden scales of Lady Justitia?
The present researcher is therefore of the view that an exemption should be made or a special provision should be imported into the Evidence Act by amending section 135 (1) for the purpose of proving allegations of crime in a civil suit with particular reference to an election petition. The bar is too high for the petitioner who is often in most instances not in control of the state apparatus. The present researcher actively advocates for a reduction of the standard of proof in proving a criminal allegation in an election petition to be on preponderance of evidence.
A practical review of factual situations and the strict interpretation of section 135 (1) of the Act will mostly always leave the petitioner unable to prove the allegations of crime in his petition. The array of cases cited above and many others were lost by the petitioners because they could not prove the criminal allegations beyond reasonable doubt. This definitely raises the concern that this standard is not apt for a complex procedure like an election petition.
Therefore, it is highly recommended that either judicial activism or legislative review should be embarked on for the purpose of interpreting or amending section 135 (1) of the Evidence Act by making special recognition and provisions for election petitions.
Foreign Jurisdiction Election Petition System: The United States as a Case Study
In the United States of America, the electoral system as a whole is slightly different from the Nigerian direct votes electoral system. In the United States, the president of the country is elected on a double platform of electoral college votes (which in recent times has been canvased to be abolished) and direct popular votes. The electoral college is more or less a committee of states’ delegates who meet to elect the president of the country established by virtue of Article II, section 1 of the United States Constitution. There are 538 electors (members of the electoral college) of whom at least 270 must vote for a particular candidate to elect a person and his/her running mate as president and vice president respectively. While the Electoral College elects the president, the American public also has a shot at casting their votes. However, the deciding voice in who goes or returns to the White House in the case of an incumbent is dependent, not on the vote of the American public but on the votes of the 538 persons selected from the 50 States of the United States.
Sometimes it has so happened that while the Electoral College elects a particular candidate, the popular votes will elect a different candidate. This happened during the candidacy of John Quincy Adams (1824 elections), Rutherford B. Hayes (1876 election), Benjamin Harrison (1888 election), George W. Bush (2000), and quite recently in 2016, when Hillary Clinton defeated Donald Trump in the popular election with over 2.8 million votes but the electoral college in a surprising move elected Donald Trump. The United States system provides that the winner of the presidential office is the person certified by the Electoral College and not the popular votes.
The question then arises, what happens when a person loses an election in the United States? How relevant is their own system and why should the comparative analysis be drawn?
After the United States elections (which usually occur in November of the election year), the Legislative branch of government (called Congress) in a joint session meets on the next January 6th at exactly 1 p.m. where the votes of the electoral college are ratified. It will be recalled that it was in the last similar votes ratification session that an invasion of the United States Capitol by hoodlums allegedly inspired to act at the behest of former president Donald Trump occurred.
Once Congress in a joint session expresses satisfaction with the votes by certifying the election, the elected person is sworn on January 20th at noon, or January 21st if the 20th falls on a Sunday, and thereafter no challenge whatsoever shall be permitted to such election result. So, for the American presidential election system, their electoral petition system is a bit less hostile because of the entrenched constitutional safeguards. However, this is not to suggest that there have been no instances of discontent with election outcomes.
Usually, if the discontent pertains to state governorship or legislative post, the State’s highest court is empowered to hear and determine such disputed elections/ election results as an ordinary civil suit. Each state of the United States has at least one Supreme Court with Texas and Oklahoma, having separate supreme courts for civil and criminal matters. It is when the Supreme Court of a particular state has adjudicated over a particular election result within that state’s jurisdiction that an aggrieved candidate can proceed to the final and last court of the country, the federal Supreme Court.
So, basically, in the United States, state laws and federal laws (Federal Contested Elections Act) and the Constitution determine how electoral results are contested whether for federal or state offices in so far as those elections were contested in the state. Regular civil courts handle election petition matters applying state laws. Basically, all election petitions start at the State Courts via regular civil proceedings. By US electoral laws (e.g the Federal Contested Elections Act), all decisions from the state’s supreme courts are final except, as previously mentioned, where an aggrieved candidate decides to pursue his case at the Federal Supreme Court or where there is a violation of federal electoral laws, then in the case of a candidate for the House of Representative, the House shall in its special committee hear such matter and decide accordingly
To get a clearer idea of how the US election petition system works, we shall briefly examine the highly contentious case of George W. Bush & Anor v. Albert Gore Jnr & Anor (531 U.S. 98 2000).
In 2000, after a fiercely contested presidential election in the United States, all the states except Florida released their results for each candidate. Florida which had conducted its own election on November 7, 2000 had a challengeable issue with some ballot sheets. About 61,000 voters had submitted irregular sheets. Bush was set to win the state (incidentally, his brother Jeb Bush was the governor of the state) however in a ferocious legal move, the Gore team applied to the Florida Court to order an immediate recount of the 61,000 irregular sheets. The Florida Supreme Court after hearing arguments ruled in favour of Gore and ordered a recount of the 61,000 votes. The George Bush team, sensing a potential turn of the tide headed to the Federal Supreme Court where arguments were heard on December 11, 2000 and by December 12, 2000, the Court gave its ruling staying and overruling the Florida Supreme Court. With the stay and overruling decision, Florida gave the state to George Bush who together with votes obtained in other states crossed the 270 electoral college votes threshold by 1 extra vote to win the United States Presidency by 271 votes.
To fully appreciate the above suit, the legal arguments and wisdom canvassed therein as well as to understand the US system, kindly visit law.cornell.edu/supremecourt/text/531/98.
The crucial aspect of the Bush v. Gore case is the promptness with which the suit was heard both at the Florida Supreme Court and the Federal Supreme Court. The parties went home satisfied (both the winner and loser) that justice had been done. For a full study and review of the suit at the Florida Supreme Court kindly visit floridasupremecourt.org/content/download/242155/file/GoreResponseMotionTostay.pdf.
The point therefore is that there should be a modification of our election petition system to resemble that of the United States where election-related matters are instituted, heard, and determined in regular courts in the country. Therefore, the present researcher
recommends that election matters can be heard at the State High Courts like other ordinary civil suits.
In the suggestion that High courts should be saddled with the jurisdiction to hear and entertain election petition matters, the challenge that readily comes to mind is the possibility of bias and compromise on the part of the judge. Therefore, the Federal High Court superintending that state jurisdiction can be saddled with the judicial authority to hear and determine the election petition matters like every other ordinary civil suit. Appeals can rise therefrom to the Court of Appeal and the Supreme Court.
The purpose of this system will be to ensure a smooth, efficient, and cost-effective procedure as well as a straightforward litigation pattern for all election-related matters. To ensure an objective evaluation of evidence and minimize the possibility of bias, the number of judges sitting on such election matters can be increased to 3 (three) judges or more as obtainable in the United States jurisdiction.
Conclusion and Recommendation
This article has undertaken a comprehensive review of the election petition system in Nigeria. it has analyzed the different election petition tribunals and Court obtainable under the election petition system, the grounds upon which election petitions are brought, the various qualifications required to contest an election, a critical review of the election petition tribunal/court proceedings from prefilling to filing to pre-hearing, hearing and judgment and post-judgment steps to enforce the tribunal/Court’s judgment. The article also addressed the critical 180-day timeline enshrined in the CFRN 1999 as amended for the resolving of all issues in election petitions. The article also reviewed the foreign jurisdiction system with particular reference to the United States of American system with focus on the Bush v. Gore suit.
Having underscored all issues and matters arising from our discussion so far, this 2-part article will conclude with the following pertinent recommendations which have already been extensively canvassed in the body of the article.
First, as recommended in the foregoing paragraphs, our election petition system should be amended to allow election petition suits to be filed and heard in the regular courts like every other civil suit. In the case of presidential election matters, the Court of Appeal is apt as is currently obtainable, while for Governorship and Legislative election petitions, the Federal High Court should be vested with an exclusive original jurisdiction to hear, entertain and determine such petition matters. The court when sitting in its capacity as an election petition tribunal should be constituted of at least 3 (three) Judges. For the local government and area council election petitions, the states’ High Courts should have unfettered jurisdiction to hear and determine their election petition matters. Appeals from the High Court for the Local Government and Area Council elections petition may then arise to the Court of Appeal where they shall be determined without further recourse to the Supreme Court.
Secondly as was suggested in the body of the article, with respect to costs and other financial implications, the normal financial requirements obtainable in ordinary civil suits should apply to the election petition matters instead of the high costs currently imposed on petitioners. It is understandable that the presence of these costs may act as some sort of barricade to sieve out the unserious litigants. To address the fear that many interlopers will abuse the cheap process, it should be borne in mind that the locus standi hallmark entrenched by way of those who are qualified to bring the petition and the defined grounds thereof will ensure that the seemingly cheap process is not abused. Besides, even in its presently costly state, abuse can still occur. Hence, the argument cannot be sustained that when election petition fees are reduced that it will lead to abuse of the process.
Thirdly, as canvased in the body of the article, the 180 days’ timeline and the provisions of the CFRN and the obtainable judicial attitude, that once the 180 days are up, that no force on earth or above can resuscitate the petitioner’s suit (even where the petitioner is not to blame) should be holistically reviewed. As mentioned in the article, while the 180 days will serve as a safe harbor timeline to finalize and ensure a smooth transition and continuity of government, yet like Section 293(5) CFRN, where a judgment is obtained in excess of that timeline, such judgment ought not to be void ab initio but rather should be voidable subject to a party’s application or after review by an appellate court.
Fourthly, this article also considered and reviewed the obtainable standard of proof in election petitions. It showed that the requirement of proving criminal allegations beyond reasonable doubt is too onerous and herculean a task for the petitioner. It was suggested that special provisions be made for the election petition as it was shown that under Nigerian circumstances it is often very difficult if not impossible to prove most criminal allegations in election petitions beyond reasonable doubt. Hence an extensive review of the current standard of proof was called for and it was suggested that the obtainable standard of proving all allegations in an election petition, whether civil or criminal, should be on balance of probabilities or preponderance of evidence.
Finally, the aim of this article as a whole is to critically underscore and consider the question of whether the election petition system in Nigeria is not rigged against the petitioner. After salient discussions and review, in some quarters, it was shown and seen that the election petition system is currently rigged against the petitioner. Albeit it must be mentioned that this is not intentional on the part of the court or drafters of the relevant laws and constitution. However, over time and in practice, the sheer enforcement and literal interpretation of some of the provisions of the various obtainable laws and judicial principles have worked to rig the system against the petitioner.
Those critical sectors and points needing urgent reforms have been canvased in this article. It is, therefore, the aim of this article and the prayer of the present researcher that these suggestions and recommendations highlighted above and extensively discussed in the body of the article be implemented to ensure that all parties in an election petition are given a fair and level playing ground to ventilate their grievances and go home at the end of the day with verdicts served on golden scales of equity, justice and fairness.